Defining the Full Monty is the Supreme Court's job

November 05, 2013|Noah Feldman

Get dressed for work this morning? Bummed that you won't be paid time and a half for it? The U.S. Supreme Court cares — really.

In Sandifer v. U.S. Steel, the court is actually considering whether the Federal Labor Standards Act, which excludes "changing clothes" from the workday, applies to steelworkers who put on flame-retardant pants and jacket, work gloves, steel-toed boots, a hard hat, safety glasses, ear plugs, and a snood. (No, not the kind Mennonite women wear — the kind that makes you look like the Unabomber.)

Some cases are inherently funny, and let's just admit that this is one of them. There's something about the image of these burly steelworkers taking off their clothes in the locker room — and wanting to get paid for the time it takes — that inevitably makes you think of "The Full Monty."

When you add in that the justices themselves work in outfits they put on over their clothes, and that they meet and shake hands in what is actually called the robing room before every oral argument, the absurdity deepens. The vastly superior name of the anonymous and highly entertaining legal blog that preceded Above the Law was Underneath Their Robes. Enough said.

If this is getting you in a lather about your hard-earned tax dollars being wasted, get ready to add some lawyer-hating into the mix. The briefs (please, no puns) are full of such timeless interpretive questions as: Does it count as "changing" if you put the flame-retardant gear over your street clothes, but don't take anything off? What if you do substitute one for the other? Is a hard hat "clothing" considering that it goes on your head but is used for protection? What about goggles, for which the Red Sox's David Ortiz recently discovered a use that certainly combined fashion and fun?

Admittedly, nine grown justices in robes arguing about these utterly ungrounded definitional issues makes you see exactly why lawyers have a bad name. We have too many lawyers, you may be thinking, and they spend too much time arguing about unimportant details without nay principled basis.

But if you'll just hear me out, there's an important lesson to be learned here.

Most of the Supreme Court's work isn't about ultimate issues like prayer, abortion, affirmative action, voting rights and health care. Most of it is, well, law. Language inevitably has ambiguities in it — even "changing clothes." And we need an institution that will ultimately address these questions definitively.

That institution isn't just the Supreme Court, but the entire legal system. Taken as a structure, it rarely makes the headlines. But for better or worse, it keeps the entire system of capitalism running. That regularity enables us to manage and contain the risk of deep societal conflict.

Sixty or 70 years ago, disputes over fair hours for dangerous work were not trivial at all. Consider the closely related question of whether miners should be paid for time traveling down into the mine. In 1945, this issue was litigated intensely before the Supreme Court, which split 5-4 over the issue. The internal deliberations on the court were so intense that they generated a dispute that eventually led to a bitter falling out between the great justices Hugo Black and Robert Jackson. Major labor negotiations were taking place at the same time over the issue of portal to portal pay.

The Fair Labor Standards Act at issue in the changing clothes case today was an attempt to reduce the uncertainty costs of such disputes through a baseline law. Clear statutory language helps settle expectations and assign legal rights. Yet no law, however superficially unambiguous, can escape the problem of interpretation. We as humans are simply too creative to let that happen. New interpretations unsettle expectations and increase uncertainty.

Courts and lawyers are the imperfect yet inevitable solution to this problem of what the British legal philosopher HLA Hart called the "open texture" of legal language. His example was of a sign that said "No Vehicles in the Park." Is a baby stroller a vehicle? How about a bicycle? Rollerblades? You can approach these questions by asking what the purpose of the law is, or by looking terms up in the dictionary — but either way, you have to admit that someone must have the final say. It's cost-effective to have laws, and it's cost-effective to have a Supreme Court that ultimately says what they mean.

The robes are extra. But they, too, do some work. Like the robes of the clergy, they convey the authority of the decision-maker. When the judges put them on over their clothes, they deserve to be paid for it. In fact, we can't afford not to.

(Noah Feldman is a professor of constitutional and international law at Harvard and the author of five books, most recently "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices." This commentary was distributed by Washington Post News Service with Bloomberg News.)